Senate Deal Kills Effort to Extend Antiterror Act

By ERIC LICHTBLAU

Published: May 9, 2003

WASHINGTON, May 8 — Senate Republicans backed down today from an effort to make permanent the sweeping antiterrorism powers in a 2001 act, clearing the way for passage of a less divisive measure that would still expand the government's ability to spy on foreign terrorist suspects in the United States.

In an agreement finalized over the last week, Senator Orrin G. Hatch, the chairman of the Senate Judiciary Committee, dropped his effort to extend provisions of the 2001 legislation, the Patriot Act, whose broad powers to investigate and track terrorist suspects are scheduled to expire in 2005.

As a result, the Senate voted 90 to 4 to approve a measure expanding the government's ability to use secret surveillance tools against terrorist suspects who are not thought to be members of known terrorist groups.

Under current law, federal officials must establish a link to a foreign terrorist group in order to secure or request a secret warrant.

The day's developments represented a major test of the balancing act between fighting terrorism and protecting civil liberties, and the result delivered a mixed verdict as many lawmakers expressed reservations about giving law enforcement officials too much power to fight terrorism.

"There's a delicate balance between liberty and security," said Senator Charles E. Schumer, the New York Democrat who was one of the authors of the so-called "lone wolf" counterterrorism measure. "It's a seesaw, and that's the debate that we're seeing now in Congress."

The overwhelming passage of the measure masked intense behind-the-scenes maneuverings in recent weeks over the powers that the federal government has been given to fight terrorism.

Mr. Hatch, Republican of Utah, led a push beginning last month to attach to the bill an amendment that would have repealed time restrictions built into the 2001 measure.

Mr. Hatch adopted this tactic because he was said to believe that some Democrats on the Judiciary Committee were seeking to water down the bill by attaching amendments that would impose tougher legal standards and greater reporting requirements on law enforcement officials in their use of their new counterterrorism powers. Many Democrats have complained in recent months that the Justice Department has kept them in the dark about its counterterrorism activities since the Sept. 11, 2001, attacks.

Mr. Hatch's effort to make the Patriot Act permanent set off immediate criticism from civil liberties groups and lawmakers, including some Republicans, who said Congress needed more time to scrutinize how the act was working — and whether law enforcement officials were abusing it. Some of the Republican opposition has come from lawmakers concerned about reach of "big government."

Jeff Lungren, a spokesman for Representative F. James Sensenbrenner Jr., the Wisconsin Republican who is chairman of the House Judiciary Committee, said that extending the life of the Patriot Act "will happen over his dead body."

As part of a tentative deal reached last week and completed over the last several days, Republicans on the Judiciary Committee agreed not to seek a repeal of the act's sunset provisions at today's vote on the terrorism bill if Democrats pulled some of their own amendments that the Republicans considered objectionable.

"The Democrats weren't going to give us a vote on the thing unless there were no Hatch amendments, period," said a Republican Senate aide who demanded anonymity. "A lot of the Democrats hated the Patriot Act even though they voted for it, and they certainly didn't want to see it made permanent. It's an ongoing, simmering debate."

Margarita Tapia, a spokeswoman for Mr. Hatch, said that the senator was satisfied with the final result.

"Since a compromise was worked out, we decided not to offer" the amendment repealing the act's time restrictions, she said. "But that doesn't change his position. He continues to be opposed to the sunset provisions of the Patriot Act," Ms. Tapia said.

Indeed, Democrats said they remain concerned that Mr. Hatch and other Republicans would continue to look for other legislative vehicles to help repeal the time restrictions — an idea that Justice Department officials said they supported.

In the meantime, civil liberties advocates were heartened by the defeat of the proposal.

"This is a major victory," said Timothy Edgar, legislative counsel for the American Civil Liberties Union. "Hatch wanted to intimidate the Democrats into not offering their amendments, and that ploy didn't work because there is widespread concern that the government has already gone too far with the Patriot Act. His salvo may have backfired."

With the debate tabled for the moment, focus will shift back to the more limited counterterrorism measure that was approved by the Senate today, officials said.

The measure, which was sponsored by Senators Schumer and Jon Kyl, Republican of Arizona, has received the backing of the Justice Department, but its fate in the House remains uncertain.

"We'll wait to take a look at the Senate bill and see what we're going to do," said a senior Republican aide in the House.

The Senate bill's supporters deemed the measure a way of fixing the problems that arose in the case of Zacarias Moussaoui, who was jailed on immigration charges in the summer of 2001 after taking flight classes in the Minneapolis area.

Law enforcement officials have maintained that the F.B.I.'s inability to show conclusively that Mr. Moussaoui was linked to Al Qaeda or a known terrorist group — as the current law for foreign intelligence surveillance requires — prevented them from securing a warrant against him. Searches of Mr. Moussaoui's computer and belongings only after the Sept. 11 attacks revealed evidence linking him to Al Qaeda, and he is now charged with being a part of the terrorist conspiracy.

"These people don't have cards identifying themselves as members of these organizations," Mr. Kyl said. "The bottom line is, it's very difficult, sometimes impossible, to prove that they're affiliated with a specific group. In some cases they're not. They're simply acting on their own, but they are still foreign terrorists."

Mr. Schumer suggested that if the foreign link requirement had not been in place in the summer of 2001 and the F.B.I. had gotten a secret warrant against Mr. Moussaoui, "perhaps 9/11 might have not have occurred. That's the anguish that we all face."

Some legal experts have challenged that assertion, saying the F.B.I. had the opportunity to get a warrant against Mr. Moussaoui but botched it.